After Two Years, MalwareTech Is a Free Man

If you’ve been following my Twitter account, you already know the Happy Ending: Marcus Hutchins just walked out of Milwaukee’s Federal Courthouse a free man. While he might have faced up to fourteen months in prison, Judge JP Stadtmueller sentenced Hutchins to time served and a year of probation.

The legal battle, by Brian Klein and Marcia Hofmann, was won in sealed sentencing motions and a short exchange at the beginning of the hearing, significantly an exchange persuading the judge there should be no sentencing enhancement for the damage done. In spite of the fact that the government’s sentencing memo confirmed what had been clear all along: virtually all the identified victims were overseas, especially in Hutchins’ home in the UK, which made it pretty crazy the US was prosecuting him and Britain was not. Nevertheless, the government tried to substantiate a claim of $47 to $60,000 by scraping one of the dark web sites where malware based on the code he wrote had been sold. “The loss exists but it’s very difficult to pin down,” prosecutor Ben Proctor admitted.

Hofmann insisted it’s the government’s burden to substantiate loss, and what they had done in an attempt to do so was too speculative.

Stadtmueller agreed.  But his views on loss focused more on comparing the government’s uncertain numbers with the known damage of WannaCry, which Hutchins had managed to tame by creating a sinkhole for it. “When it comes to matter of loss or gain,” Judge Stadtmeuller said, “the most striking is comparison between you passing Kronos and WannaCry, if one looks at loss & numbers of infections, over 8B throughout world w/WannaCry, and >120M in UK.”

And that decision made Hutchins eligible for probation. In any case, Stadtmeuller noted in a comparison from the single other CFAA charged he presided over in his 30+ year career as a judge, sentencing guidelines are no longer mandatory.

When Stadtmueller noted that had this case been tried closer to the time when Hutchins stopped WannaCry, he’d have gotten cooperation credit for that act, and when he noted that this case shouldn’t have proceeded for 17 months, it became clear (as had the single order he had submitted in the case before today) he was really struggling to understand why the hell the government had decided to prosecute the guy who had shut down WannaCry.

Stadtmueller, a 77-year old senior judge, several times described how insecure everything digital is, how the protocols for security cyberspace are woefully inadequate. Stadtmueller repeatedly noted that everyone agreed that Hutchins had given up criminal hacking well before these charges. That helped Stadtmueller to ignore the government’s claims about needing a deterrent. The judge described the community of people who love and support Hutchins — not just his family but also the cybersecurity community (some of whom submitted letters in support describing what a great person he is and the import of his actions on WannaCry). He noted how many of those people also, like Hutchins, worked to secure the Internet.

Hutchins gave a statement that went roughly like this:

Your honor when I was a teenager I made series of bad decisions. I deeply regret the conduct and the harm which resulted. I eventually discontinued but wish I could go back. I now work in cybersecurity stopping same kinds of malware. [Comment about creating training videos] I do this in hopes i can steer people away from my mistakes. Future reinforces that I have no plan to go back, I’d like to dedicate more time to teaching next generation of security experts. I’d like to apologize to victims, those who learned of my past, my family.

After a half-hearted attempt from Proctor to emphasize the theft enabled by Hutchins’ malware, Stadtmueller then started a long speech, one that started by noting that of the 2,200 defendants whose sentencing he had overseen in 32 years, Hutchins’ was unique because, “one might view ignoble conduct against backdrop as work a hero, a true hero. That is, at the end of the day, what gives this case it’s uniqueness.” He emphasized we need people like Hutchins to help secure the Internet. “It’s going to take individuals like yourself who have skillset to come up with solutions, bc that is the only way we’re going to eliminate this subject of woefully inadequate security protocols for entire panoply of infotech systems.”

The judge them emphasized that, on top of everything else, Hutchins had been away from home for two years.

That’s when what every lawyer watching in the courtroom I spoke with called unprecedented. The Judge suggested Hutchins should get a pardon, which would enable him to come back to the US to work. “While court has no pardon power, matter reserved to the executive. Truly left for another day.”

He then imposed Hutchins’ sentence. “We reach a point in balancing these considerations, court left to make final call. Final call is a sentence of time served with one year of supervised release.” He went on to make it clear that, once Hutchins finishes packing up his life in LA, he wanted to be sure that Immigration doesn’t get custody. “Nothing in this judgement requires he stay in the United States. I’m seeking to avoid him being taken into custody by Immigration and Customs. We don’t need any more publicity or another statistic.”

“Thank you your honor,” said as the rest of the bureaucratic details of probation were discussed.

This case should never have been prosecuted in the first place. And when Hutchins tried to challenge the details of the case — most notably the one largely ceded today, that the government really doesn’t have evidence that 10 computers were damaged by anything Hutchins did — the government doubled down and issued a superseding indictment that, because of the false statements charge, posed a real risk of conviction.

Thankfully, one judge saw exercised justice the way it’s supposed to work, even if it took two years to get here.

Update: I made a very significant error in this when I was writing it on a bus, saying that sentencing guidelines were mandatory rather than not mandatory. I’ve fixed that.

84 replies
  1. Jack Assels says:

    It warms the cockles of my heart to see that there’s at least one old judge who’s not just sober, but wise as well.

  2. Jesse says:

    Oh thank goodness, sanity prevails. Respect to Judge Stadtmueller.

    Thank you for following this case so closely, Dr. Wheeler. So much frustration throughout… I did NOT expect a just ending like this. It’s nice to smile once in a while.

  3. orionATL says:

    it would be hard to find a more boneheaded, misuse of federal prosecutorial power than the doj-fbi’s mistreatment of marcus hutchins. from the botched (or deliberately mistepresented) fbi interview to the stubborn prosecutorial decision to go after the guy who stopped “wanna cry”, the nsa program called “eternal blue” that the nsa let get loose, the federal government looked like and was a cruel, abusive legal bully.

    all this, i judge, not because there was some legitimate concern for public safety, but for no more trivial a reason than to compel hutchins, a British citizen, to become a digital spy for the fbi.

    as dangerously abusive of presidential power as donald j. trump’s attacks on the dept of justice and the fbi are, it is behavior like this, repeated over the years, that brings me up short of any unqualified support of the doj or fbi. both the presidential and policing power centers are not to be trusted, the key difference in my mind being that the doj-fbi power center can be more readily reviewed and checked; the presidential is almost unchecked.

    • bmaz says:

      I don’t know that the prosecution was completely bogus legally. I’d put it in the category of that done to Don Siegelman. It was not legally unfounded, but should not have occurred in spite of that. Sometimes there needs to be more discretion in “prosecutorial discretion”. This is also a plea and sentencing that, if it were to happen, should have happened long ago. And I said that at the start.

      • orionATL says:

        i think that’s fair to say. Hutchins did create kronos and presumably pocketed the $7k. the analogy with siegelman seems a good one.

        what lights my fuse though is that i had the impression that our doj was not particularly concerned about any damage to society from disclosure of banking info, but rather was interested in using the threat of prosecution to pressure hutchins into becoming an fbi spy. if so, the entire indictment and prosecution was a sort of fraud on the public. in any event, this drama reminds me too much of the doj persecution of aaron swartz.

        • bmaz says:

          Yes. And I also think Marcy was right from the get go that DOJ and associated three letter agencies were desirous of having Hutchins be a CI. This plea could have been, and should have been, entered and sentenced on long ago. I said that from the get go as much as Marcy said the government was trolling for an informant. Both were true. And, yes, it all sucks. That said, as ugly as it has been in the interim, I am glad for the disposition for Hutchins today. The past cannot be recovered, but Mr. Hutchins has a way forward from today. That is good.

        • marc says:

          She also called the ‘name the victims’ part of the program. The official transcript of the hearing + filings about the lack of known victims should be something to ask at your next InfraGuard meeting as the FBI is supposed to have a threshold of damage before they get involved.

    • BobCon says:

      I’m not well versed in either case, but I’d be interested if anyone has a take on how ruthless the prosecution was here vs. the Aaron Swartz case.

        • BobCon says:

          Thanks, that’s an interesting piece.

          It seems like the common thread of overreach by prosecutors is a tough thing to solve, needing a combination of better laws and better personnel and leaders.

          I’d argue that we also see the opposite of overly tough prosecutors in cases where suspects have expensive attorneys and political connections — it’s frustrating seeing all of the details of the Epstein case come out, and I’m guessing Trump era cases will be just as bad.

          I recognize it’s awfully hard to get tougher enforcement in some areas without getting unintended consequences, though.

      • marc says:

        Every case is its own unique snowflake. The status of the victim(s) and the dollar damages may be parallels to draw. Courtlistener should have documents to compare and contrast with.

    • skua says:

      I am reminded of the multiple reports from people released from Gitmo that their captivity had been used, not to interrogate them about involvement in anti-American insurrgency or terrorism, but instead, to try to force them into becoming informants or agents for the USA.

      No Justice Department worthy of the name is going to engage in such activity.

  4. Shadrivers says:

    Thank you so much for covering this case in such detail. Truly a treasure to have such excellent reporting in a “time of cholera”.

  5. earlofhuntingdon says:

    Hutchins is lucky in one respect. The fundamentalist FedSoc adolescents that McConnell is shepherding onto the federal bench would probably not have taken such a humane approach.

    • jack says:

      “I’m seeking to avoid him being taken into custody by Immigration and Customs. We don’t need any more publicity or another statistic.”

      also not nothing for a judge to say in this context, in addition to the pardon comment. I feel like Judge Stadtmueller is one of a few Reagan/HW appointees who remember a different conception of the proper exercise of prosecutorial discretion. Though Judge Stadtmueller in particular has had a good pretty contentious relationship with that US attorney’s office.

      • Marc says:

        Given the Judge repeated twice the bit about ‘needing [assumed – LEGAL] protocols’ for computer security perhaps there is concern about people being reminded of how WannaCry was infectious? ‘Cuz there seems to be no ‘legal protocols’ to handle how WannaCry was infectious.

  6. AndTheSlithyToves says:

    “it would be hard to find a more boneheaded, misuse of federal prosecutorial power than the doj-fbi’s mistreatment of marcus hutchins.”

    If you’re not aware of the details in the Don Siegelman travesty, I would suggest you google it. Thoroughly corrupt and political persecution of a sitting governor (who probably had a shot at the Democratic Presidential Nomination) of Alabama, with none of the questionable actors ever brought to justice. Former FBI agent involved in jury tampering (among other things) in this and another case and now works in the Alabama AG’s office. Think Karl Rove, Luther Strange, Bill and Leura Canary, etc.)

    • orionATL says:

      thanks –

      the karl-rove-inspired legal torture of don siegelman by u.s. attorney leura canary is a matter i have been concerned with since it began unfolding. the entire charade was designed to take siegelman, the most well-known and respected Democrat in alabama out of political circulation. it succeeded. siegelman spent much of 7 1/2 years in prison. the pretext of bribery was a deal siegelman worked out with ala. business tycoon richard scrushy to give scrushy a board appointment in return for cash, though not for siegelman.

      a large contingent of state attorney-generals signed a petition in siegelman’s favor. had the supreme court’s mcdonnell case (ex governor of virginia convicted of bribery) been on the record at the time, rove and canary’s effort would have failed.

      judge David pryor’s appointment to the fifth circuit court in Atlanta was tainted forever by his involvement in the siegelman8 matter.

      • AndTheSlithyToves says:

        “judge David pryor’s appointment to the fifth circuit court in Atlanta was tainted forever”

        Hm-m-m-m. Did you perchance mean “William H. Pryor’s appointment to the 11th Circuit Court” in Atlanta? The same William H. Pryor that Sessions & Co. attempted to install on the SCOTUS until Trump got wind of indiscretions from his college days?

      • Democritus says:

        Oh I have a feeling I’m gonna get some heartburn in the near future. But Im not gonna read that until AFTER my weekend of love is done.

        Speaking of which why am I here with you guys. Going to go find the spousal unit.

  7. Marc says:

    During the ‘computers need security’ part of the hearing the Judge mentioned physical security.

    Back in ’95 near tax time there was an incident at that court house which had 2 local news trucks. As you entered the building you could see the elevator next to the entrance and in front of that was someone on the ground with 3 kneeling paramedics who were surrounded by a debris field of medical wrappers. The man wearing armor and holding something that looked like a AR15 told ya to move along and stop looking and from the base of the big open area there were 4 per floor of people with armor and AR15s.

    The Judge talking about physical security has a different meaning when ya know that bit of history and note how neither TV station there mentioned the situation.

  8. Vicks says:

    Sorry OT
    Is there any evidence that the timing on this whole thing was planned?
    Some of it? All of it?
    I saw what was going on with Pelosi but I couldn’t reconcile it with an image i’ve had that the confidence and edge that got her the speaker gig is still there and just like Talib she wakes up every morning, puts on her lipstick looks in the mirror and says “I’m going to impeach the mother fucker”
    Could it be a strategy for Nancy to pander to moderates alarmed by team trumps talk of socialists by going after the squad and saying they are only 4 votes? Same for pretending to hold back any talk of impeachment,
    Could they have intentionally rescheduled Mueller for two days before the break? There were news reports that after his appearance people even were heading home a day early,
    How about Nadler teasing but not calling it an inquiry until the the coast was clear and the lights were just about shut off?
    It was so obvious this is what needed to get done, and what a perfect time to do it.
    Everyone is freaking gone, they can work in relative peace, it’s a break so they can’t get accused of not doing their day jobs.
    Does anyone else feel like person pissed off thinking everyone forgot their birthday and when they walked into their surprise party they felt like a total asshole when they start putting all the clues they missed together?

    • Eureka says:

      (Here’s a clean link for that without the facebook trackers: )

      I felt I better understood the point of their petition

      after watching the complete press conference (29 mins) with Q&A from reporters (as opposed to news coverage excerpting Nadler’s opening remarks):

      House Judiciary Chair Nadler Speaks to Reporters

      By scoping their investigation as including, but not limited to, impeachment, I believe they are pointing to legislative remedies as well.

      My impressions: They are going after the unresolved polling data questions hard, and I think they’ll finally be the ones to get into some of the quid-pro-quo (at least as it relates to Trump $ anyway). As Marcy has noted, Mueller seems to have avoided a lot that could have been construed as (constitutional) presidential prerogative. Our Article I reps can go and are going there. If they don’t run out of time.

      Additional reporting here:
      House Democrats escalate impeachment fight with suit to obtain Mueller grand jury information

      • Democritus says:

        That would be great if they are and I wish them all speed.

        In other words, Dems

        Go, go, go!

        Also regarding Mr. Cummings, Trump is not worthy to shine that mans shoes. Cummings district is the second most wealthy black majority district in the nation, but yes portions of it are poor. And if the GOP wants to play Representatives are responsible for the way their people live there are lots of GOP Senators with some explaining to do.

        The Dems can just go through the UN report that found broad swaths of America are below third world conditions. Send photographers to Appalachia and the Deep South.

        Here is what decades of majority gop rule in Alabama has accomplished:

        • BobCon says:

          A Washington Post profile of Kushner says he is supposedly pushing for an effort to get Trump support in inner cities. I suspect it’s plant by Kushner and not serious. It’s always possible it’s an ego project for a guy who thinks nobody will point out how awful his rental properties are.

          I also wonder, though, if he’s networking to get more data for efforts to suppress turnout — one of the goals of Russian trolls in 2016 and more recently has been to push a message to minorities that there’s no point in voting.

        • Vicks says:

          I was always suspicious that the only accomplishment of the voter fraud committee was to get their hands on the voter data of several dozen states.
          I know they say it’s all available publically, but is it?
          Some of that information is restricted from use so it would not be part of any data list you could buy.
          There was also that weird unprotected list of almost 200 million voters information three or four years back and of course now we know Russia a has been peaking at voter records as well.
          Of course I’m suspicious of anything these a-h*les do so maybe it wasn’t the primary motivation but after what we have seen, I find it hard to believe that Brad Pascale doesn’t have a copy of everything they received

        • Eureka says:

          You must be talking about the same piece I linked last night (emphasis on “perplexing other advisors”), to a longer comment addressing voter suppression and other gaming tactics. As a corollary to the latter option you gave, they could be floating the explanation for why they’ll get ‘positively’ increased ratios of inner city or blue-area votes. Suppression and ‘elevation’ will both tip such ratios, though only the latter is a socially acceptable explanation (“They LOVE me in the big cities!”). It’s on message with all of the other crap about failed liberal cities, the Baltimore slam included. The claim about Kushner could be piloted, coordinated messaging rather than puff.

          Adding: I am on the lookout for how they will try to game the popular vote, besides the EC (and among other look-here-while-we-are-over-there tactics).

      • Vicks says:

        Sorry about the link I have to pay closer attention. I set up a Facebook account years ago in case I needed to check up on my kid and finally used it for the first time a few months back when it was the only option for me to connect with a small local (and private) group. Screw them. Facebook not the group. We fought hard and won.
        I caught the press conference live and at first I said to myself “this is it!” that soon changed to “goddamn it Nadler say it!” to finally “it’s a start I guess”…
        Since that letter went up last evening in the Atlantic I have read the last paragraph at least a half dozen times.
        I feel hopeful, in a way that is different than the 100 plus times I have said that in the past.

        • Eureka says:

          Yeah facebook’s facebook-ness sucks. No problem. (And to orion below, yes, that is what that signals.)

          I feel good about the article, too, Vicks.

          The thing is, whatever any of us can speculate about Pelosi or her motives, I have no doubt that many HJC dems are genuinely in this constitutional fight. I appreciate that they took action, based on the limited set of options available at this point in time, and didn’t leave Mueller’s testimony hanging in the void.

          The issue is “this point in time,” in both relative and absolute terms: Dems have played by a predictable set of steps, and Barr-Trump have run down the clock at every opportunity.

          I did get a sense that this next go-round would not be the eternity that was the gap between spring MR and near-mid-summer testimony, and hope for all of us that that is better than ‘not wrong.’

          Meanwhile, I also hope that the number of reps coming out in favor of an impeachment inquiry continues to climb, and that they are neither confused nor placated by this partial-ish action.

        • bmaz says:

          Yes. And now that they are on a 5-6 week break, it will be interesting to see what happens with the good representatives if they truly go home.

        • Eureka says:

          I was wondering that myself, and figure at least a few of them can take the Acela back and forth to DC as needed.

    • orionATL says:

      thanks for the clean link and the thoughtful commentary.

      “fbclid” signals facebook tracking?

    • Sonso says:

      I am hopeful that your viewpoint is possible. I was fortunate enough to talk to a couple of house members recently, and they were cagey, but indicated that there is some strategy about how the procedures could be timed. There is legitimate concern about backlash (a concern I do not share). With the latest death penalty stunt, the Trumpies are playing the media like an orchestra, and this will lead to more bogus questions at the upcoming debates. It is almost like the old Spy vs. Spy cartoons from Mad magazine.

  9. Eureka says:

    Marcy, when I saw your twitter headline on this I had to do a double-take, because positive-sounding news (especially the superlatives from the judge) is so rare that it can seem like it must be snark or weird satire. I hope things continue to work out well for this young man, who I learned about through your reporting, and who has by all accounts grown up since his mistakes and is making the world a better place in his way.

  10. Bay State Librul says:

    Ask the lawyers.

    Two questions.

    What exactly is “Grand Jury material”? and

    What would be the consequences to a member of a Grand Jury, who goes on Sixty Minutes, and spills he or she’s guts out?

    Asking for a friend?

  11. Bay State Librul says:

    Thank you. Appreciate the info.
    I’m guessing that our whistleblower would spend five years in jail?
    Puerto Rico gives me hope.
    Taking to the streets does work…
    Maybe that’s the final step to ousting our Dictator.
    Bye, bye Ricardo Rossello

    • earlofhuntingdon says:

      It’s more likely to be a purely domestic political play, dog whistling for the fire and brimstone crowd that expresses its christianity by identifying others to send to hell.

      It is also sure to rev up the liberals, in hopes of distracting them with an old enemy, but one that has nothing to do the president’s laundry list of abuses – except to express what he would like to do to his political opponents.

      • Democritus says:

        Thank you! I was trying to think of if they had hidden motivations and remember hearing stuff about it in a different context I think, terror suspects maybe? I know just enough to get in trouble, but I don’t know enough to know when the cockamamie idea is not just improbable, but impossible. There are enough actual problems in the world I don’t need to be making up new ones to worry about.

        Also OT, but I saw Marcy tweeting about Mark Meadows DOD pulling funds from NC, and there have been problems with Lejuenes water for decades. Military members, their family’s and dependents in his state will drink dirtier water. I mean my dad was an officer and I generally grew up off base when in country, but that is not the reality for many enlisted families.

        The old pollution crisis in LaJeune

        But LeJeune and Cherry Hill also had some of the highest PFAS contamination in the country in a recent study I was just reading about. I can’t find the good link I had before but I found these.–stemming-from-us-military-bases-pfas-contamination.html

        Fuck Mark Meadows and his overlord wall is more important than the troops they pretend to give a shit about but don’t. So sick of their duplicitousness.

      • earlofhuntingdon says:

        I agree with your comment on twtr: Nadler asserting in a pleading that he is conducting an “impeachment inquiry,” absent a formal resolution to that effect, is insufficient. There is no reason for the courts to accept it, and every reason for Trump’s lawyers to pour fire and water on it.

        If Nadler intends this to be an end-run around Pelosi or the lack of votes on his committee, it is likely to fail miserably. It would be viewed by the MSM and the GOP alike as the hapless, ineffective fire that is Democratic resistance to presidential abuse.

        • bmaz says:

          I would love to be wrong on that, but I don’t think so. The bare minimum is a voted on HJC resolution. Ideally more, but that is the minimum

    • earlofhuntingdon says:

      That Cummings is a legitimate civil rights icon and hero is precisely why Trump would attack him with his racist screed.

      “Rat” and “infested” are epithets he commonly throws at immigrants and minorities. To Trump, Miller and their like, they are inherently unworthy of citizenship or respect, being as they are not quite three-fifths human. The language closely matches the graphics used in the early twentieth century to describe the supposed threat from Catholic and Jewish immigrants coming from southern and eastern Europe.

      It is as if Nathan Bedford Forrest were sitting in the White House.

  12. earlofhuntingdon says:

    Why might Moscow Mitch be so opposed to better election security? In the spirit of Rayne’s inquiry into Trump’s golf course “revenue,” let me suggest a few reasons and observations. Chime in with better ones.

    More secure and fairer elections make it harder to predict a win. It’s like competition in business. Businesses avoid it because it makes it harder to make money and control market share. They prefer monopoly. For the same reason, politicians and vendors prefer less transparent elections.

    More secure elections make it harder politically to rig them. Suspicions abound about the rigging by both parties: Boston, NYC and Chicago among Democrats, the entire South among Republicans. But the prevalence of purportedly legal vote rigging and voter suppression in Republican-controlled states is off the charts. The GOP, in particular, will fight reforms to keep what hold they can on a shrinking voter base.

    Greater voting security starts with greater transparency. That makes it harder to do sweetheart deals with favored vendors, harder to impose de facto restrictions in predominantly minority voting districts, harder to be lax about physical and virtual security, audit trails and recounts.

    Greater transparency would help cure many contracting ills. For starters, there should be No Secret Contracts. They should be readily viewable public records.

    There should be no non-disclosure provisions, no mandatory arbitration clauses, no long-term lock-ins or heavy penalties for cancellation. There should be high standards for physical and virtual security, testability, verifiability.

    Proprietary and trade secrets should yield to the need for transparency. It’s the cost of democracy. It is the price of doing business with the public. Don’t like it, go back to where you came from. No vendor would like it. They will and are spending millions to lobby against it.

    The feds could achieve these reforms through mandatory uniform standards for election machinery, software, systems and support, auditability, and audits. A good start would be making election day a national holiday. States can’t afford two systems, so what they need to do for federal elections, they will do for state and local elections.

    Russian and Ukrainian investments could go anywhere. They go to Kentucky because that’s where Mitch is. Replace Mitch, and the money will follow the new leader of the Senate. That kind of money buys a lot of backing from the locals, who are already predisposed to support a top Senator, who would be loathe to give it up.

    The cost to Congress is to help pay for these state systems. All that cuts the power and profits from private contractors. They will be strongly against such reforms. For enough money, so will Mitch.

    • Eureka says:

      All important points.

      To the first question I would add the benefit, to Mitch et al., of doubt. Call it “doubt capital.”

      (Especially) Russian assistance has been part of the GOP’s plan since at least 2013/2014– sharing the common enemy with Putin of HRC– and tighter election security would remove not only some opportunities for (costly and NDA-secreted) mechanical fuckery, but– more importantly– doubt and conflict. They wish to keep reaping what they’ve sown, leaving the money trails in chaotic doubt-clouds of corruption and squirrel-chasing media complicity. Domestic-only operations, while essential to the plan and reliant to a degree on the same lack of security, are not enough (hence recent GOP attempts to escalate those, too). And while I’ve simplified the trans-national interests here, for at least the near-term, a certain ilk is incentivized to keep the GOP in power.

      • Tom says:

        Apart from any vulnerabilities in the voting infrastructure, what I worry about going into 2020 is that Trump will attempt to skew the results in his favour by, for example, calling out his followers to ‘monitor’ the voting at their polling stations to ensure that no ‘illegals’ are allowed to vote; or that he will suddenly become a convert to the fact that the Russians or other foreigners are interfering in the election and therefore the election results will have to be ‘verified’ in some previously unknown way; or Trump will declare a national emergency that he will say requires some kind of federal interference in the election process, whether or not that is legally possible. Maybe those scenarios are absurd but I just don’t think anyone should underestimate the craziness that Trump is capable of, particularly given his recent statements that Article II of the Constitution allows him “to do anything”.

        Meanwhile, the Democrats are carrying on like the old couple in that 1986 British animated film, “When the Wind Blows”, vainly trying to maintain their regular daily routine while ignoring the fact that the world has literally blown up around them. Beginning the impeachment process will likely not result in the President being removed from office, but the Democrats have to do something to try and put a spoke in Trump’s wheels. Moreover, they have to be seen to be using every tool at their disposal to get Trump out of office or at least expose the extent of his corruption and malfeasance in order to offer Americans a rallying point for their opposition to the current administration. These are not normal times and the Democrats should stop pretending that they are.

        • Eureka says:

          [Insert part of 1012p comment below into this thread, adding GOP senators’ cover to Moscow Mitch’s doubt-clouds (really have Pigpen in mind here, though I hate to knock poor Pigpen with the comparison).]

          I don’t think anything you’ve suggested is beyond the pale to worry about; he has after all already gone there– extensively– with the first item– even had Rudy sowing it on the teevee (though it was a little more generalized as to ‘vote rigging’: cities, minorities, illegals). IIRC he was stopped with various state court injunctions, then backed-ish off. But voter suppression is still voter suppression without literal poll watchers showing up– the threat has historically been enough in some cases. Also his Roger-Stone-affiliated supremacist groups (who were involved with a Stone-led “poll watchers” effort, though they said they were working ‘with the campaign’*) are even more emboldened now, years into POTUS Trump.

          The other, ‘new’ methods you suggest are all highly plausible, and then some.

          To be fair, Pelosi has cited the concern with what would happen should dems not overwhelmingly win 2020 (as to what Trump could contest, or maybe do with or to the margins), and implied that that is guiding her efforts. Of course we see ample disagreement throughout these pages as to how that is best managed. As elsewhere, I do have faith that the ones on board to deal with Trump are genuinely motivated.

          I think the scarier problem (than even the dems) is that this is happening all over the Western democratic world, to all of us and our shared allies. It’s but a matter of degrees. Bannon et al. planned well; it’s not like the WWII era…they are leaving no one to be able or interested in coming to save us (whoever ‘us’ is at that time).

          Adding: A bit distracted by the news, there is a shooting at the Gilroy (California) Garlic Festival.

          *per Politico article ca Aug 2016 and other cites linked previously

        • P J Evans says:

          I’ve been following that shooting. Himself has sent a tweet telling people to “be careful and safe!” Clueless and inappropriate, as usual.
          5 shot and on the way to or at the county hospital, up to 60 injured in one or another way. The shooter was described as a white male in his 30s, in camo, who came up out of a creek bed and started sweeping the place with a semi-auto rifle.
          Report now is three dead.

        • Eureka says:

          Yes, it’s so sad.

          We are only as safe as our happenstance public proximities to or distances from the radicalized (+/- otherwise unhinged) when their fuses blow.

  13. orionATL says:

    re: earl of h @ 7/27 4:09pm

    if impeachment is a political and not a legal matter, and if the chair of the house judiciary committee asks for documents relevant to this political inquiry for use by the house (the one and only political body charged with initiating impeachment), i would think the courts would feel obliged to provide those documents not as a matter of law but as a matter of respect for the guiding principle of the constitution, the seperation of powers. the house judiciary vomm is the only place in the house where impeachments start.

    it seems to me that under the seperation of powers, it should not be the job or the right of the courts to determine that a formal request for relevant documents from a duly appointed official of the house judiciary committee (chairman nadler) for documents (grand jury) is somehow legally inappropriate and does not have to be met. what law would guide such a decision? a good faith federal court response to the house judiciary committee’s request would seem to be “what do you need that we can provide you with”. this is not a situation where the courts should play legal games with the house of representatives, thought that cannot be ruled out in the current climate.

    • bmaz says:

      That is absolute bullshit. You cannot waltz into court and say “Your honor the 4th Amendment prohibits this action, Although, to be clear, I am not invoking the 4th Amendment even though I clearly could”.

      And yes, that is exactly the job of courts to discern what is being argues, and whether it has been sufficiently pleaded.

      I know you are hell bent to adopt and apologize for the craven betrayal by Pelosi the Constitution and her oath of office. And that apologia remains as asinine and wrong today as it always has been. And if you do not think courts are the last bastion of protection of separation of powers, you are completely nuts.

      You relentless engage in rose glasses analytical vomit. You are wrong, you are full of shit, and you do not have a clue what you are talking about..

      • orionATL says:

        bmaz –

        i don’t know that what I have written is the right analysis for this situation, but it is an interesting alternative view. in time we will see what the courts have to say about the matter. lawyers aren’t the only people who have a right to think about these issues.

        the key matter is the courts should not hinder the judiciary committee’s deliberations by withholding useful documents or information.

        your comment would be more useful if it focused more on problems with my analysis instead of on your assumptions of my motives. what you don’t address is the key issue of seperation of powers.

        • bmaz says:

          And, thanks, I do not need you to tell me how I ought comment. Seriously, take that shit and shove it.

  14. orionATL says:

    re: orion @7/27 7:47pm

    this statement is not accurate “the house judiciary comm is the only place in the house where impeachments start.” a more accurate statement is “the house judiciary committee decides whether to proceed with impeachment.”

    this is more accurate:

    “In the House of Representatives

    The House Judiciary Committee decides whether or not to proceed with impeachment. If they do…The Chairman of the Judiciary Committee will propose a resolution calling for the Judiciary Committee to begin a formal inquiry into the issue of impeachment.Based on their inquiry, the Judiciary Committee will send another resolution composed of one or more “Articles of Impeachment” to the full House stating that impeachment is warranted and why or that impeachment is not called for.The Full House (probably operating under special floor rules set by the House Rules Committee) will debate and vote on each Article of Impeachment.Should any one of the Articles of Impeachment be approved by a simple majority vote, the President will be “impeached.” However, being impeached is sort of like being indicted for a crime. The president will remain in office pending the outcome of the Senate impeachment trial.”

  15. orionATL says:

    re: orion @7/27 8:05

    the key point is that the courts should not hinder the deliberations of the house judiciary committee, which is the only house committee that can form a resolution of impeachment and then send that resolution to the full house. if the committee chair asserts documents under court supervision are necessary for the judiciary committee’s deliberations with respect to forming a resolution of impeachment that should be sufficient for a court acting in good faith to produce those documents to the committee. otherwise the court obstructs the committee’s deliberations on whether it can fairly vote out an accurate resolution of impeachment.

    • bmaz says:

      Bullshit. Courts are the counterbalance. And without a formal impeachment inquiry resolution, at a minimum from the HJC, blithely uttering baseless word is feckless and asinine.

      You are free to blather what you “wish” was the case, but no court in their right mind would bite on that complete nonsense. You are trying to mount and ride a unicorn that does not exist. And your “theory”, which as it has no basis whatsoever in law, is patently ludicrous.

      • orionATL says:

        bmaz –

        you don’t seem to understand. the committee may need the grand jury info to decide IF an impeachment resolution is warranted. are you saying that you believe the judiciary committee should just pass a resolution with no investigation? or that there has been enough “investigation”, say by mueller? why do you suppose the committee wants grand jury transcripts?

        these may be useful:

        • bmaz says:

          Yeah, thanks. I understand just fine and do not need your crappy cites. And if you want to lie and conflate Articles voted out for Senate trial, which you relentlessly do, with simple investigatory power, you better take that dumb ass crap somewhere else. You are lying when you do that, and you know it. Don’t lie to the people on this blog.

          Seriously, fuck right off with that. And do not presume to “help” me with some local TV garbage and an old Lawfare article. I am well informed on this subject. I am not sure you really are. Either that or you are truly lying out of your ass. It is one or the other.

        • orionATL says:

          bmaz –

          let me repeat the question I asked immediately above:

          why do you think the judiciary committee chair has asked for grand jury transcripts?

        • orionATL says:

          bmaz –

          you really should not assume that citations i include with my comments are intended for you. i intend them as educational for anyone who reads what I have written; they provide useful background information that i can not; i have been doing this as long as i have been writing here.

          on the key matter of my several substantive comments above, this particular meeting of the legislative and judiciary branches seemed like a perfect situation in which to introduce the concept of separation of powers. this is not a matter of the judicial branch adjudicating between the executive and legislative branches. rather, it is a matter of the house (in the form of the committee of the house charged with authorizing an impeachment to proceed for the entire house) requesting documents of the judiciary, specifically grand jury documents acquired by and held by the judicial branch.

          there really should be no serious impediment to this request being met short of judicial partisanship.

        • bmaz says:

          Orion, I really do not give a flying fuck why “you” think you do what you do.

          And, no, there actually are judicial standards, that you clearly do not know your ass from a hole in the ground about; it is not always some ignorant concept of “judicial partisanship” as you perceive it.

        • Eureka says:

          Orion 1128p (but also can apply to 1023a):

          I thought of a fruit analogy last night…

          I debated whether to get involved in this recurring fracas you guys are having, and now that I have some bananas and plantains in the mix, I darn sure will. I hope this helps sort things out. If not, consider a refreshing fruit salad:

          The distinction is the fact that HJC wants 6e grand jury materials. The reason they give the court as to why they want them matters strongly as to whether a court would see HJC as entitled to getting them.

          bmaz and earl’s and others’ point is that giving the reason of a *formal impeachment inquiry* is the strongest case to make as to why the court should let them have the 6e materials.

          While it would be great if the current argument works– and I hope for all of our sake that it somehow does work, and expeditiously so– the law experts here are saying that the reason given is unlikely to produce favorable results in court.

          Also, while from a lay perspective it seems like investigation–> inquiry—> perhaps voting articles are steps in a logically continuous process, that is not how arguing the law in this case works. HJC is basically testing (what they say about) their oversight functions in court.

          Let’s say the court accepts brown plantains as ideal arguments to allow HJC access to 6e.

          HJC’s argument is that they are handing over a yellow plantain that has some brown spots.

          People who think HJC’s argument will fail say HJC has instead offered up a yellow banana. They would say to use the impeachment inquiry footing and just hand over the damn brown plantain.

          This is not even getting into opposing arguments or other sharp utensils… Just suggesting a different way to look at things to take it out of this loop.

          Feel free to adjust the recipe, the chef was/is tired.

          I’ll add that the continuation this am (1023a) sounds like you are arguing that the court should accept bananas because it’s not judiciary’s job to pick congress’ fruit, while bmaz is saying that that is irrelevant, and that judicial standards matter.

        • orionATL says:

          eureka –

          it is nice to see a thoughtful, detailed analysis.

          my comments have very little to do practically with any request for documents. i was considering an interesting question about seperation of powers which really is at the heart of a mstruggle about impeaching a president – a power struggle between the legislative and the executive branches – between president trump and the house majority. people who like to think about government might find my comments interesting; lawyers might find it irrelevant.

          as it happens, the trump impeachment process also involves a straight transaction between two other of our three constitutional branches. the legislature (in the form of the house judiciary committee) house is making a request of the judiciary (for grand jury records wholly under the control of the juficiary). it will be interesting to see what the judiciary’s response is. it really should be straight forward. there is no inherent value to refusing the legislature’s request despite the recent appellate ruling on grand jury material. the legislature is NOT the judiciary’s ordinary legal customer and should not be treated that way. nor should it tolerate such treatment. a future budget and personnel reduction to the administrative office of the u.s. courts by the house would serve to get that point across.

          i can imagine the judiciary could, and this judiciary almost certainly will, place obstacles in the path of such a request,
          but under a fair reading of seperation of powers that really should not be the case. under a fair reading, the only inhibition to turning over records requested should be adherence to well-established tradition and procedures. as far as i can see, under a fair reading the records should simply be made available without undue delay. we know from judicial history that judges unseal grand jury records. if the judiciary choses to defeat the legislature’s request, then i seriously doubt that any effort to make the judiciary committee as bullet- proof as possible will have had an effect. in fact i’m willing to bet if the request for grand jury records goes to the appellate level, there is no chance in hell the judiciary committee will ever see them no matter what manner of strenuous effort they have made or how very clever their lawyering.

          above all this current affairs to-and-fro, the issue of seperation of powers resides, forming the basis of a critique of what transpires, and, most importantly, what must be changed in the seperation power balance before we face this problem again.

  16. Savage Librarian says:

    Eureka says at 7/27/19 @ 11:43pm:
    “It’s on message with all of the other crap about failed liberal cities, the Baltimore slam included. The claim about Kushner could be piloted, coordinated messaging rather than puff.”

    I think that is exactly right. The Trump Syndicate is ALL about BRANDING. Never, never, never underestimate the power of those who have control of the message. Putin understands that, completely.

    So, I think David Cay Johnston is absolutely on target. Take a look at the following excerpts. Then check out the entire article cited below if you have time!

    “The GOP just made a really huge mistake: David Cay Johnston” – July 25, 2019

    “House Republicans made a huge mistake during the Mueller hearings Wednesday. Unintentionally, for sure, they created the opportunity for Speaker Nancy Pelosi to overcome the only reason to avoid impeaching Trump – the certainty that Mitch McConnell would never allow the Senate to convict.”

    “The GOP mistake? Not raising one word of concern about Russian interference in the 2016 election.”
    “Call them out, Nancy. That’s all you have to do – authorize public hearings that will make the case that the Republicans will sell us out to Vladimir Putin just to hold onto power. Put the Republicans enabling Trump on the defensive by holding day after day of public hearings that through the steady drip, drip, drip of new facts expose the perfidy of the whole gang of Trump Protection Racketeers.”

    “In doing so the Speaker should keep in mind a  crucial difference between advertising and marketing versus news and commentary. We break news and move on. But marketing and advertising are based on three rules: repeat, repeat, repeat until the message gets embedded in millions of minds.”

    “The marketing principle should dominate here. And by exposing facts day after day the news, and commentary, will follow, wearing down the disloyal opposition.
    This will also require explaining, endlessly, to politics reporters how government works, that this is not about the horse race politics they are paid to cover (and cover well), but about whether our democracy and the liberties of the people endure.”

    “The way to do this is most definitely not by going after the Republicans directly. Labeling them as the craven disloyalists that they have become will just devolve into a cat fight. The way to approach this is through public hearings that go where Mueller could not.”

    • Tom says:

      I agree. That’s why the “Moscow Mitch” moniker seems so effective. Joe Scarborough must have said it a dozen times or more on his Friday morning show, and I see that you can buy “Moscow Mitch” t-shirts with a picture of McConnell all gussied up in fur hat and Russian regalia ready to take the salute in Red Square for the May Day parade.

      • Tom says:

        The response from the GOP was the same when Michael Cohen appeared before Congress this past February. Cohen even asked the GOP members if they didn’t have any questions about the Trump financial documents or hush money cheques he brought with him. They didn’t.

        • Eureka says:

          The GOP are cowards and wish to avoid as many on-the-record statements as possible on all matters Trump-Russia, while Moscow Mitch shields them from accountability.

          I meant to add a comment to that effect to the discussion above on the advantage Mitch has by refusing to tighten election security. As many with GOP senators have complained, Mitch refusing to take action also prevented the senators from having to go on record any further with their thoughts and prayers for our elections.

          You know how old clips periodically recirculate of Lindsey Graham and others talking up the Russian threat, how they’re going to take action– well, nope. No accountability, except on (maybe a few cable news shows and) twitter where constituents recirculate these clips, statements, and so forth (and of course remind their senators of same with letters and calls).

    • Savage Librarian says:

      Speaking of sending a message and promoting a brand, MSNBC’s Joy Reid does a fantastic interview with Tim Wise in the link below. Wise was successful in undermining the rise of white supremacist, David Duke.

      I believe Wise is totally correct in his assessment that Democrats need to emphasize VALUES above all else. Constitutional values would be a good start.

      “Vanquisher of David Duke says Dem candidates who ignore Trump racism are ‘bringing spreadsheets to a gun fight’ “

      “So, you’re not going to win an election against an emotional movement by just talking about your wonderful plan for this or for that,” he continued. “Not that we don’t need good plans, but I think the entire campaign of any Democrats needs to be focused on the existential threat that Trumpism poses to the America we care about and the values that we believe in.”

      “Wise said that Democrats should point out that bigotry “doesn’t solve our problems.”

      “That’s going to have to be the message that unifies people,” he said. “Not just simply having really good plans. The Democrats… are bringing spreadsheets to gun fight. Right? They are bringing debate evidence to a gun fight rather than understanding this is about values, the values we care about as a country as opposed to the values that Trumpism represents.”

    • Eureka says:

      Thanks SL for the excerpts, I’ll try to read the rest later. David Cay Johnston knows Trumpian ways perhaps better than any other single reporter still around, as he covered his casino/AC shenanigans extensively in the 80s & 90s.

      Tim Wise, too, has great expertise for this era and we’d do well to heed him. I’ve heard/read some of his stuff lately and he’s right. It would be easy, too, for dems to fill the vacuum he sees by *simply having honest, human reactions/ proactions* to Trump. Sure they can plan a campaign around this, but just the honest reaction to the racism, with a simple– guttural, even– proactive statement can help in the meantime.

      The good thing about Trump et al. relying on branding is that *we can see it coming from a mile away,* should we chose to pay attention and act.

  17. Eureka says:

    This lingers. From an Andrea Pitzer thread yesterday, #4,5 of 5:

    “It’s a strange moment. We can still speak freely in public. Courts can rule as they wish. If the House began impeachment proceedings, the Senate *could* reverse course tomorrow and back them up. But these kinds of institutional interventions seem less and less likely.”

    “The existence of camps for untried civilians, arrests and detention of several citizens (that we know about), the use of the military on domestic soil–these are terrible indicators. In the past, they have typically signaled much worse things to come.”

    On the related issue of ‘outsourcing’ immigration to other countries: thread and immigration experts’ discussion here, from the 26th, re the Remain in Mexico program:

    Aaron Reichlin-Melnick: “I’ve reached the point on MPP where I believe that it will cause more harm than family separation. We’re going to hit 25,000 sent back this week. 50k in by September. Yet, even with excellent articles like this it is SO hard to get people to care. (links to The Guardian; with the photo of the mother clutching her little boy, on her knees, begging to be let in)”

    Also from the 26th, Jonathan Blitzer thread with updates on the safe third country agreement:

    “That anyone who arrives at U.S. border seeking asylum can be sent to Guatemala. DHS said that it has Salvadorans and Hondurans in mind, but the language of the agreement leaves open a broader possibility, consistent with the document I saw a week + ago 4/(links to his New Yorker article)”

    Dara Lind has updates on her twitter feed as well, a lot on the 26th, e.g.:

    “Okay, this, however, does describe a safe-third-country agreement. Even if the words “safe third” don’t appear in text anywhere, if the US is now allowed to send asylum-seekers to Guatemala solely bc they didn’t seek asylum there en route to US, that’s it. (quoting tweet re McAleenan statements)”

    • Eureka says:

      Adding: Lind retweeted this, re a different, more dangerous route migrants use to avoid transiting Guatemala (use is predicted to increase in order to avoid that new* basis of denial to claim asylum in US):

      Caitlyn Yates: “I have interviewed migrants who have taken this route. It is more dangerous, requires taking small fishing boats that are susceptible to capsizing, and walking through the jungle to enter Mexico. It is likely to also increasingly become more used.”


      Sandra Cuffe: “There is an existing route for people from #Honduras and #ElSalvador to make it north without transiting #Guatemala: transit through HN to Puerto Cortes, catch the weekly boat straight up to Belize, head north to Mexico. I predict a boom in lanchero business, P Cortes – P Gorda.”

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